Probate is the legal process of settling your estate once you die; paying your creditors and transferring your remaining assets to your heirs and beneficiaries. In Washington State, probate is a well-defined and orderly process prescribed by law. If you have an elder law attorney help you, there is hourly legal expense associated with administering probate (as opposed to a percentage of the estate as in states like California). This expense is often far outweighed by the benefits of protecting assets for your survivors.
When you have a valid Will, it is admitted to probate by the court and a Personal Representative (also known as Executor or Executrix) is appointed to settle the estate and distribute the assets as stated in your Will.
When you die without a Will, the court applies the laws of intestacy to determine how your property will be divided, i.e. everything to your spouse or if there is no spouse, everything to your children in equal shares. Intestacy laws may limit inheritance by your spouse when you have assets you maintained as separate property; those owned prior to marriage, inherited or received as a gift during marriage or when you have children by another relationship.
If you plan your estate with Elder Law Group, we will help you create a plan for administering your estate as well. In Washington State, probate is not required by law, but it can be a very beneficial estate administration tool to clear title to your property and carry out your wishes for its distribution.
If you have heard of probate, what you may have heard was not positive. There are many misconceptions about the process. In some instances, avoiding probate may not be the right plan for your estate. Yet, some firms and businesses market “probate-avoidance” devices like revocable living trusts. These are difficult to maintain and even if you have one of these trusts, you will not always be able to avoid probate of your estate.
Below we discuss the most common misconceptions about probate to help you separate fact from fiction.
Misconception 1: Probate should be feared and avoided.
It is true that, in some states, probate can be an onerous and expensive process. Fortunately, Washington is not one of those states. Probate in our state is much easier than it is in other states, and often the appropriate process for administering your estate.
It can be necessary and helpful in situations where a Supplemental Needs Trust needs to be established for a surviving spouse or disabled child who requires Long-Term Care or receives public benefits. The effect of creation of this trust is to provide immediate protection for at least one-half of a couple’s estate.
Complicated estates with considerable or out-of-state real property are typically best handled via probate. If your estate needs creditor protection or there is dissension among your heirs and beneficiaries, the third-party oversight of the court and probate law will minimize difficulty for your estate.
Probate in Washington State should not be feared, but welcomed when it is appropriate for your estate. Talk to Elder Law Group regarding your concerns for future administration of your estate.
Misconception 2: Probate is always a long, drawn out process.
Many people believe that “probate” is synonymous with lengthy court proceedings. This is usually not true. Depending on the language of your Will or if the court allows, your Personal Representative can serve with nonintervention powers, which means with legal authority to act without court oversight unless necessary.
Sometimes the length of probate depends on whether it is desirable to utilize the benefits of Washington’s creditor protection law, which requires your Personal Representative to notify reasonably ascertainable creditors of the impending probate proceedings, but restricts the amount of time they have to present their claims or be forever barred to four months from probate filing.
Washington law does not require a Personal Representative to publish a Notice To Creditors, and without it, the probate could be considerably shortened. However, there are often benefits to the estate to utilizing the creditor’s claim period in probate. A typical probate in Washington should last six to nine months.
Elder Law Group can assist you in planning, or your Personal Representative in executing, an efficient and effective probate based on the needs of and your plan for your estate.
Stay tuned for Part II of this blog series to appear next month!